Gauhati High Court
Md Abdul Ali & Ors vs Ibrahim Ali on 3 February, 2015
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CIVIL APPELLATE JURISDICTION)
R.S.A.No. 20 of 2003
APPELLANTS :
1. Abdul Ali.
2. Hasan Ali.
On the death of appellant No.3, Surjya Bhanu,
Her legal heirs -
3(1). Abdul Ali (son)
3(2). Hasen Ali (son)
3(3). Ambar Ali (son)
All are residents of Vill. Bheraldi,
P.O. Bheraldi,
P.S. & Dist. Barpeta, Assam.
-Versus-
RESPONDENT:
Ibrahim Ali, Son of Late Abdul Gani, Resident of Vill. Bheraldi, P.O. Bheraldi, P.S. & Dist. Barpeta, Assam.
BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM Page 1 of 15 For the appellants : Mr. H. R. A. Choudhury, Sr. Advocate.
Ms. R. Choudhury, Advocate.
For the respondent : Mr. N. Dhar, Advocate.
Mr. B. Hussain, Advocate.
Dates of hearing : 28.01.2015 & 03.02.2015
Date of delivery of : 03 .02. 2015.
Judgment.
JUDGMENT AND ORDER (oral)
1. This Second Appeal has been directed against the judgment and decree dated 13.06.2002 and 21.06.2002, respectively, passed by the learned District Judge, Barpeta, whereby the learned First Appellate Court allowed the Title Appeal No.9 of 1996 filed by the respondent/plaintiff decreeing the suit of the plaintiff and at the same time dismissing the Title Appeal No.11 of 1996 filed by the present appellants/contesting defendants thereby upholding that part of the decree passed by the learned trial Court in Title Suit No.22 of 1991 whereby the counter-claim of the appellants/defendants was rejected.
Page 2 of 15
2. The Second Appeal was admitted to be heard on the following substantial question of law :-
"Whether the title was carried to respondent Ibrahim Ali pursuant to the execution of sale deed Ext.1 and 2 and those sale deeds were valid in law?"
3. The case of the plaintiff/respondent is that he had purchased land measuring 3 bigha 2 katha covered by dag No.421 of P.P. No.168 of village Bheraldi under Barpeta Mouza from its registered owner Ranjan Das by means of a registered deed of sale bearing No.1355 dated 10.11.1989 and thereafter was put in possession of the land. His name in respect of the said plot of land was also mutated on 16.03.1990 on the basis of his title and possession. In and around the same time the plaintiff had purchased another plot of land measuring 2 katha 10 lechas from its registered owner Latika Medhi i.e. the proforma defendant No.2, by means of a registered deed of sale bearing No.1552 dated 25.10.1991 pursuant whereto he took over possession of the said land. His name was also entered into the jamabondi in respect of the plot of land and he had been possessing the land by raising dwelling houses thereon where the plaintiff had set up a grocery shop. In the aforesaid manner, the Page 3 of 15 plaintiff had therefore purchased a total area of land measuring 3 bigha 4 katha 10 lechas described in Schedule-B to the plaint. It is the pleaded case of the plaintiff/respondent that appellants/defendant No.1-3 threatened to dispossess the plaintiff from the suit land on 04.11.1991 which in effect has clouded the title and possession of the plaintiff from the suit land. The respondent/plaintiff was therefore compelled to institute Title Suit No.22/1991 in the Court of Civil Judge (Senior Division), Barpeta praying for a decree declaring his right, title and interest over the suit land, a decree for confirmation of possession and further praying for a decree of permanent injunction against the contesting defendants.
4. The defendant Nos.1 to 3/appellants contested the case of the plaintiff by filing joint written statement. Besides taking the formal plea of objection pertaining to maintainability of the plaintiff's suit, plea of limitation, absence of cause action and improper valuation of the suit, the contesting defendants took the plea that the suit land belonged to their grandmother Gulsera Bibi, who was the original pattadar. The said Gulsera Bibi did not transfer the ownership of the suit land in favour of anybody. As such, the Page 4 of 15 vendors of the plaintiff, i.e. Ranjan Das, son of Prafulla Das, who had executed the sale deed No.1355 and Smti. Latika Medhi, daughter of Mahadev Nabis, who had executed the sale deed No.1552 did not have any saleable interest in the suit land. The contesting defendants, however, did not dispute the fact that the suit land originally belonged to Gulsera Bibi which is also the pleaded stand of the plaintiff. On the basis of such plea the defendant Nos.1 to 3/ appellants had also filed a counter-claim praying for declaration of their right, title and interest over the suit land and also for confirmation of possession with a further prayer for cancellation of the sale deeds bearing No.1355 and 1552 on the ground of those being fraudulently obtained. Claiming possession over the suit land, the aforesaid contesting defendants had prayed for a decree of permanent injunction and also for declaring that the mutation granted in favour of the plaintiff are null and void.
5. On the basis of the pleadings of the parties, the trial Court had framed as many as 7 issues which are as follows :-
"1. Whether the suit is barred by law of limitation?
2. Whether the suit is bad for non-joinder of necessary party/parties?
3. Whether the suit is properly valued and proper court fees paid?Page 5 of 15
4. Whether the sale deed executed in favour of the plaintiff as referred in the plaint are fraudulent as alleged in the written statement?
5. Whether the plaintiff has right, title and possession over the suit land?
6. Whether the defendants are entitled to relief or any of the reliefs as prayed for in the counter claim?
7. To what relief or reliefs the parties are entitled?"
6. It may be relevant to mention herein that earlier the learned Civil Judge (Senior Division), Barpeta (formerly known as Assistant District Judge), vide judgment and order dated 08.07.1994 had dismissed the suit of the plaintiff/respondent while decreeing the counter-claim filed by the appellants/defendants. Being aggrieved by such decree the plaintiff as appellant preferred Title Appeal No.7/1994 before the First Appellate Court whereby the appeal was allowed by setting aside the judgment and decree passed by the learned trial Court on 08.07.1994 and the entire matter was remanded back for a fresh disposal with a direction to permit the plaintiff to adduce evidence in the form of certified copies of the sale deeds pertaining to his vendors title. Thereafter, the parties were allowed to lead evidence. Eventually, by the judgment and Page 6 of 15 decree dated 06.08.1996 the learned trial Court dismissed the suit filed by the plaintiff as well as the counter-claim of the defendant Nos.1 to 3.
7. Being aggrieved by the said judgment the plaintiff/ respondent had preferred Title Appeal No.9/1996 before the Court of learned District Judge, Barpeta whereas the defendant Nos.1 to 3/appellants had preferred Title Appeal No.11/1996 before the same Court. Both the aforementioned Title Appeals had been disposed of by the learned District Judge, Barpeta, by the impugned judgment dated 13.06.2002 and decree dated 21.06.2002 whereby the Title Appeal No.9/1996 was allowed by the learned First Appellate Court by reversing the judgment passed by the trial court whereby the suit filed by the plaintiff/respondent was decreed. However, the learned District Judge, Barpeta, dismissed the Title Appeal No.11/1996 preferred by the present appellants/ contesting defendants thereby dismissing their counter-claim. Being aggrieved by the said judgment and decree passed by the learned District Judge, Barepta, the appellants No.1 to 3/defendant Nos.1 to 3 have approached this Court by presenting the instant Second Appeal.
Page 7 of 15
8. At the very outset, it needs to be pointed out that although by the judgment and decree dated 13.06.2002 and 21.06.2002, respectively, the learned District Judge had decreed the suit of the plaintiff/respondent while dismissing the counter-claim of the appellants/ defendants, yet, admittedly, only one appeal has been preferred by the appellants.
9. I have heard Mr. H. R. A. Choudhury, learned Senior Counsel, assisted by Ms. R. Choudhury, learned counsel appearing for the appellants. I have also heard Mr. N. Dhar, assisted by Mr. B. Hussain, learned counsel, appearing for the respondents. I have also perused the records.
10. The learned counsel for the appellants submits that in the written statement filed by and on behalf of the contesting defendant a specific plea had been taken that the sale deeds by which the suit land was purchased by the plaintiff/respondent were all fraudulent and therefore cancellation of such deed was also prayed for. It is further submitted that since it is not in dispute that the suit land originally belonged to Gulsera Bibi i.e. the grandmother of the appellants/defendants and in view of the fact that the appellants/defendants have produced the copy of draft Chita Page 8 of 15 showing the inclusion of their names in respect of the suit land, hence, the learned Appellate Court had committed manifest illegality in decreeing the suit filed by the plaintiff by holding that the sale deeds had, in fact, validly conveyed title in respect of the suit land upon the plaintiff/respondent. In view of the evidence led by the appellants/defendants the Court below ought to have dismissed the suit filed by the plaintiff and decreed the counter- claim granting the reliefs prayed for by the appellants/defendants.
11. Mr. N. Dhar, learned counsel for the respondent/plaintiff, submits that since the parties are not disputing the fact that Gulsera Bibi was the original owner and pattadar of the suit land, hence, in view of the pleaded stand of the plaintiff/respondent supported by evidence on record the learned First Appellate Court had rightly decreed the suit of the plaintiff. Mr. Dhar submits that the plaintiff has produced Exts-12 and 13, the sale deeds by which Prafulla Das had purchased the part of the suit land from Gulsera Bibi. The plaintiff had also produced the sale deed Ext-11 by which Mahadev Nabis had purchased a plot of land from Gulsera Bibi. Ext-8 jamabondi, Exts-4 to 7 revenue paying receipts as well as Exts-1 and 2 registered deed of sale would clearly show that the plaintiff had title and possession in respect of the suit land. All the Page 9 of 15 aforementioned documentary evidence have been duly proved by the plaintiffs. On the contrary, having admitted that the land originally belonged to Gulsera Bibi the defendants could not lead any evidence to sustain their claim of title and possession over the land. Mr. Dhar submits that the Ext-Ka draft chitha, which is the only basis for supporting the claim of the defendants/appellants, is not even an admissible evidence and as such no evidential value can be attached to the same. Therefore, Mr. Dhar submits that there is no infirmity in the judgment and decree passed by the learned Lower Appellate Court and as such the appeal deserves to be dismissed.
12. I have considered the rival submissions made by the learned counsels representing the parties. On perusal of the record I find that the plaintiff/respondent has pleaded material facts to indicate the flow of title. Exts-11, 12 and 13 being the certified copies of the sale deeds pertaining to the vendor's title have been adduced in the evidence by the plaintiff and the same was also supported by calling the relevant volume from the Sub-Registry. From a perusal of Exts-4, 5, 6 and 7 it can be seen that the plaintiff/respondent has been paying the land revenue in respect of the suit land. Page 10 of 15
13. Further, Ext-8 jamabondi unequivocally demonstrates the fact that the name of the plaintiff has been duly mutated in respect of the suit land in place of the names of the plaintiff's vendor. Exts-1 and 2 are the registered deeds of sale bearing Nos.1355 and 1552 respectively . By means of Ext-1 the plaintiff had purchased the plot of land measuring 3 bigha 2 katha from Ranjan Das whereas another plot of land measuring 2 katha 10 lechas had been purchased by the plaintiff from Latika Medhi i.e. proforma defendant No.2 by means of Ext-2 sale deed. The aforementioned two sale deeds have been adduced in evidence and the PWs 5 and 6 being the scribes in respect of Ext-2 and 1, respectively, had also been called as witness on the basis of which the said title documents have been proved.
14. The aforementioned documentary evidences had been taken on record without any objection being raised by the appellants/defendants. From the above, it can be seen that the plaintiff's side had succeeded in adducing sufficient evidence in respect of its claim for title and possession in respect of the suit land. On the contrary, the defendants have merely based their claim on two exhibits, viz., Exts-Ka and Kha as well as the oral testimony of their witnesses. Ext-Kha is the copy of Chita pertaining to the suit Page 11 of 15 patta wherein the name of Gulsera Bibi has been recorded. However, Ext-Ka which is a draft Chita wherein the name of the defendant No.1/appellant No.1 has been shown along with the name of plaintiff's vendor. Save and except the aforesaid copy of draft Chita the appellants/defendants have failed to lead any cogent evidence in support of their claim of title and possession in respect of the suit land. Even the copy of draft Chita could not lend any support in the case of the defendant in view of the provisions of law enshrined in Section 40 of the Assam Land and Revenue Regulation, 1886, which reads as under :
"40. The Record of Rights.--The Settlement Officer shall frame for each estate a record-of-rights in the prescribed manner.
Note.-- The record of rights is the jamabandi based on the chita and the field map."
From a bare reading of the said provision it is apparent that the draft chitha generally bears the data collected from the field which forms the basis along with the field map for preparation of the final record of rights i.e. final jamabandi. There is a prescribe procedure for preparation of the record of right which is usually done on the basis of possession. Therefore, until and unless the Page 12 of 15 names are entered in the jamabandi, mere entry of name in the draft chitha will not be of any conclusive value . This is so because the data entered in the draft chitha is open to alteration/correction by the revenue authorities before finally preparing the record of rights.
15. Section 41(2) further makes it clear that every entry into the record of rights shall be presumed to be correct unless and until the contrary is proved. As such, the Court will have to draw a presumption, though rebuttable in nature, that the entries in the jamabondi Ext-8 is correct. Since name of a person would be entered in the final jamabandi on the basis of his possession over the land, hence, on the basis of Ext-8 there is no reason to hold that the plaintiffs/respondents were not in possession of the suit land. Therefore, the plaintiff has clearly been able to prove his title and possession over the suit land. The substantial question of law framed by this court stands answered accordingly.
16. In view of the grounds and reasons mentioned herein above, I do not find any illegality or infirmity in the impugned judgment and decree passed by the learned District Judge, Barpeta warranting interference by this Court.
Page 13 of 15
17. Before parting with the records, it would be appropriate to mention that by relying upon the provisions of Order XLI Rule 33 of the Civil Procedure Code the learned counsel for the appellants has submitted that even though the appellants have not preferred any separate appeal against that part of the judgment and decree whereby the counter-claim of the appellants/ defendant Nos.1 to 3 had been dismissed, yet, the Appellate Court has ample power to entertain any such plea and pass appropriate order in the facts and circumstances of the case. In support of the said argument the learned counsel for the appellant has also relied upon a judgment and decision of the Hon'ble Apex Court reported in (2009)2 SCC 673 [C. Cheriathan vs. P. Narayana Embranthiri].
18. There can be no doubt about the proposition that in order to do complete justice, the Appellate Court would have ample powers to entertain such issues in similar circumstances even though an appeal has not been filed against such part of the decree. However, having regard to the facts and circumstances of the case as well as the findings recorded hereinbefore, this Court is not inclined to exercise such discretion and permit the appellants to argue on the merit of their counter-claim at this stage. Page 14 of 15 Consequently, this Second Appeal would stand dismissed. Stay order passed earlier shall stand vacated. However, having regard to the facts and circumstances of the case there would be no order as to cost.
Registry to send back the LCR.
JUDGE T U Choudhury Page 15 of 15